By Pete Brush

Law360, New York (March 21, 2020, 4:59 PM EDT) -- In an unprecedented move aimed at fighting the spread of the novel coronavirus in the Empire State, the Southern District of New York is set to launch a videoconferencing system to allow grand jurors in the far-flung district to convene while reducing travel and close physical contact.

Grand jurors will be able to select from locations in White Plains, New York, or in lower Manhattan and will be able to perform their functions from there, SDNY Chief Judge Colleen McMahon said in an order made public Saturday.

The order says "suitable space" exists for grand jurors in the Charles L. Brieant Jr. Courthouse in Westchester County, New York and that they may deliberate virtually with their co-jurors in lower Manhattan's Thurgood Marshall Courthouse "on all matters." Their presence in either location will count toward the minimum 16 needed for a quorum.

With more than 10,000 confirmed COVID-19 cases caused by the virus in New York State — more than 6,200 in New York City alone — as of Saturday morning, the decision was made to reduce the need for grand jurors to use mass transit or to be in close contact while they work, according to District Executive Edward Friedland, who called the new rule groundbreaking.

Friedland said the system will be ready as early as Monday. It is one of many moves being made in the public sector to slow the spread of the virus.

The sprawling Southern District encompasses Manhattan, the Bronx and Westchester, and also runs north to Putnam and Dutchess counties in the Hudson Valley and northwest to Rockland, Orange and Sullivan counties in Catskills region. The new rule allows grand jurors in far-flung reaches of the Southern District to avoid traveling to New York City, a hot spot for infections.

Grand juries operate in secrecy and have the power to investigate possible criminal cases, including examining evidence and taking witness testimony, prior to authorizing prosecutors to bring charges.

Former Southern District prosecutor Michael Ferrara said that the grand jury room has been "sacrosanct" for decades, but he said the process could work well, provided that secrecy is maintained and that tele-jurors have the ability to see and hear all relevant testimony, evidence and exhibits.

"It's certainly less of a contained system than people sitting together in a room. Prosecutors take grand jury secrecy very seriously. Other than classified information, it is the most secret thing prosecutors deal with," said Ferrara, white collar counsel at Kaplan Hecker & Fink LLP.

But, Ferrara pointed out, Rule 6 of the Federal Rules of Criminal Procedure, which governs the process, does not state that the grand jury must be in the same room.

Despite potential challenges such as making sure grand jurors can properly evaluate witness credibility and physical evidence from afar, lawyers say the current health crisis warrants technological solutions.

"I think it's a good solution," said former Southern District prosecutor Brooke E. Cucinella. "I think it would be very difficult to practice appropriate social distancing in a grand jury room."

Cucinella, a now a Simpson Thacher & Bartlett LLP partner specializing in investigations, crisis response and cyber security, said the process remains critical even as Southern District judges punt their caseloads.

The reported rise of COVID-19 scams, along with other offenses like violent crime, necessitate the continued viability of the grand jury, she said.

"There are some cases that can't wait," she said.

--Editing by Katherine Rautenberg.

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